reeds_8k-050509.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
May 5,
2009
Date of
Report (Date of earliest event reported)
Reed’s,
Inc.
(Exact
name of Registrant as specified in its charter)
Delaware
|
001-32501
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35-2177773
|
(State
or other jurisdiction of incorporation)
|
(Commission
File Number)
|
(I.R.S.Employer
Identification No.)
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13000 South Spring Street,
Los Angeles, California 90061
(Address
of principal executive offices)
(Zip
Code)
(310)
217-9400
Registrant's
telephone number, including area code
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (SEE General Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Reed’s,
Inc.
Some
portions of this Current Report on Form 8K, particularly those describing
Reed's, Inc.’s goals and strategies, contain ``forward-looking statements.''
These forward-looking statements can generally be identified as such because the
context of the statement will include words, such as ``expects,'' ``should,''
``believes,'' ``anticipates'' or words of similar import. Similarly, statements
that describe future plans, objectives or goals are also forward-looking
statements. While Reed's, Inc. is working to achieve those goals and strategies,
actual results could differ materially from those projected in the
forward-looking statements as a result of a number of risks and uncertainties.
These risks and uncertainties include difficulty in marketing its products and
services, maintaining and protecting brand recognition, the need for significant
capital, dependence on third party distributors, dependence on third party
brewers, increasing costs of fuel and freight, protection of intellectual
property, competition and other factors, any of which could have an adverse
effect on the business plans of Reed's, Inc., its reputation in the industry or
its expected financial return from operations and results of operations. In
light of significant risks and uncertainties inherent in forward-looking
statements included herein, the inclusion of such statements should not be
regarded as a representation by Reed's, Inc. that they will achieve such
forward-looking statements. For further details and a discussion of these and
other risks and uncertainties, please see our most recent reports on Form
10-K and Form 10-Q, as filed with the Securities and Exchange
Commission, as they may be amended from time to time. Reed's, Inc. undertakes no
obligation to publicly update any forward-looking statement, whether as a result
of new information, future events, or otherwise.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Certificate of Designation
of Series B Convertible Preferred Stock
Effective
April 28, 2009, Reed’s Inc., a Delaware corporation (“Reed’s”) filed its
Certificate of Designation of Series B Convertible Preferred Stock with the
Delaware Secretary of State, designating one hundred fifty thousand (150,000) of
its authorized shares of Preferred Stock of the company as Series B Convertible
Preferred Stock (the “Series B Preferred”). Our Board of Directors
expects that it will amend this document to revise the conversion rate as well
as the trading price that will trigger a mandatory conversion prior to the
issuance of any shares of Series B Preferred based on the prevailing market
conditions at the time of sale. The Series B
Preferred is subject to the following rights and
preferences:
Ranking.
With respect to the payment of dividends and amounts upon liquidation, the
Series B Preferred will rank equally with any other class or series
of our stock that ranks on a par with the Series B Preferred in the payment of
dividends and in the distribution of assets on any dissolution, winding-up and
liquidation of Reed’s, if any, which we refer to as “Parity Stock,” will rank
senior to our common stock and any other class or series of our stock over which
the Series B Preferred has preference or priority in the payment of dividends or
in the distribution of assets on any dissolution, winding-up and liquidation of
Reed’s, which we refer to as “Junior Stock,” and will rank
junior, in all matters expressly provided, to our preferred stock designated as
Series A Convertible Preferred stock and any class or series of capital stock of
Reed’s specifically ranking by its terms senior to the Series B Preferred “Senior Stock”.
Dividends.
Subject to the prior payment in full of any dividends to which any Senior Stock
is entitled pursuant to the Certificate of Incorporation, the holders of the
Series B Convertible Preferred shall be entitled to receive dividends
payable in cash or in stock, which dividends shall be cumulative and
non-compounding and accrue on a daily basis from the date on which a particular
share of Series B Preferred is issued, at an annual rate equal to eight percent
(8%) of the original purchase price of $10.00.
Conversion
Rights. Each share of the Series B Preferred will be
convertible at the election of the holder into shares of our common stock by
dividing the $10.00 stated value of the Series B Preferred by a conversion
price, which will initially be $2.00. The conversion rate will ultimately be
decided at the time of sale based on prevailing market conditions. Our Board of
Directors at that time expects to amend this document to revise the conversion
price. The conversion price will be adjusted to reflect subdivisions or
combinations of our common stock such as stock splits, stock dividends,
recapitalizations or reverse splits.
Mandatory
Conversion at Our Option. At any time after the original purchase date,
if the closing price of our common stock as reported by the principal exchange
or quotation system on which such common stock is traded or reported equals or
exceeds $3.00 per share (Or whatever trigger price is ultimately set at the time
of sale of these Series B Preferred Stock.) of common stock, then we shall have
the right to cause all (but not less than all) outstanding shares of Series B
Preferred Stock to be automatically converted into shares of common
stock.
Mandatory
Redemption. At any time after the second anniversary of the
original purchase date, we may redeem all, but not less than
all, of the outstanding shares of Series B Preferred at
our sole discretion, at a price equal to the greater of (i) one hundred ten
percent (110%) of the original purchase price, plus an amount equal to any
unpaid and accrued dividends and (ii) the Fair Market Value of such number of
shares of common stock which the holder of the redeemed Series B Preferred would
be entitled to receive had the redeemed Series B Preferred been converted
immediately prior to the redemption.
Voting.
Holders of the Series B Preferred will have no voting rights, except as required
by law.
Liquidation. In the event of
any liquidation, dissolution or winding up of Reed’s, whether voluntary or
involuntary, after payment or provision for payment of debts and other
liabilities of Reed’s and all amounts due and owing to the holders of
outstanding shares of Senior Stock, if any, each holder of Series B Preferred,
before any distribution or payment is made upon any Junior Stock, shall be
entitled to receive, out of our assets legally available for distribution to
stockholders, an amount equal to the sum of (A) the original purchase price of
such shares of Series B Preferred plus (B) an amount equal to any unpaid and
accrued dividends thereon up to and including the date of the liquidation event
and (ii) if such share of Series B Preferred were then convertible into common
stock, such amount which the holder of Series B Preferred would be entitled to
receive in connection with a liquidation event if such holder had converted his,
her or its Series B Preferred immediately prior to the occurrence of the
liquidation event.
Anti-Dilution
Rate Adjustment. The conversion rate will be adjusted, without
duplication, if certain events occur:
Adjustments for Subdivisions or
Combinations of Common Stock. In the event the outstanding
shares of common stock shall be subdivided by stock split, stock dividend or
otherwise, into a greater number of shares of common stock, the conversion price
of the Series B Preferred then in effect shall, concurrently with the
effectiveness of such subdivision, be proportionately decreased. In
the event the outstanding shares of common stock shall be combined or
consolidated into a lesser number of shares of common stock, the conversion
price of the Series B Preferred then in effect shall, concurrently with the
effectiveness of such combination or consolidation, be proportionately
increased.
Adjustments for Non-Cash Dividends
and Other Distributions. In the event Reed’s makes, or fixes a
record date for the determination of holders of common stock entitled to
receive, any distribution (excluding repurchases of securities by the
corporation not made on a pro rata basis) payable in property or in securities
of Reed’s other than shares of common stock, then and in each such event the
holders of Series B Preferred shall receive, at the time of such distribution,
the amount of property or the number of securities of Reed’s that they would
have received had their Series B Preferred been converted into common stock on
the date of such event.
Adjustments for Reorganizations,
Reclassifications or Similar Events. If the common stock shall
be changed into the same or a different number of shares of any other class or
classes of stock or other securities or property, whether by capital
reorganization, reclassification or otherwise, then each share of Series B
Preferred shall thereafter be convertible into the number of shares of stock or
other securities or property to which a holder of the number of shares of common
stock of Reed’s deliverable upon conversion of such shares of Series B Preferred
shall have been entitled upon such reorganization, reclassification or other
event.
The
foregoing description of the Series B Certificate is qualified in its entirety
by reference to the Certificate of Designation of Series B Convertible Preferred
which is attached to this Current Report as Exhibit 3.1.
Item
8.01 Other Events.
On May 4, 2009, in a press
release, Reed’s, Inc., a Delaware corporation (“Reed’s”) announced that it filed
a registration statement on Form S-3 for its 8% Series B Convertible Preferred
Stock ( “Series B Preferred”), amending the Registration Statement on
Form S-1 that it had previously filed with the Securities and
Exchange Commission in January of this year. Under the proposed terms
of the revised rights offering, Reed’s anticipates that it will distribute, at
no charge to its existing holders of its common stock, on the record date
nontransferable subscription rights to purchase shares of Reed’s Series B
Preferred. A copy of the news release announcing the filing of the
registration statement in connection with the rights offering is attached hereto
as Exhibit 99.1 and is incorporated by reference herein.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit No.
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Document
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3.1
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Reed’s
Inc. Certificate of Designation of Series B Convertible Preferred
Stock
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99.1
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News
Release dated May 4, 2009 entitled “Reed’s Updated Registration
Statement”
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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REED’S,
INC.
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Dated:
May 5, 2009
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By:
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/s/ Christopher J. Reed
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Christopher
J. Reed
Chief
Executive Officer
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